Agency Vs. Independent?
by Steven C. Litz, Attorney at Law
 

With the proliferation of web sites which offer "matching" services to couples and surrogates alike, I am frequently asked which method is better for surrogacy. The answer to the question "Should I try to find my own surrogate?" really depends on a number of factors. Even though I run Surrogate Mothers, Inc. (SMI) I frequently assist couples who have their own surrogate and simply need someone to do the legal work. So, while the tone of this article will be that independent surrogacy is fraught with pitfalls, that is based on my experience in this area for the past 13 years and not out of any particular bias toward agency surrogacy.

If you are considering trying to find your own surrogate, you need to ask yourself the following questions:


What am I looking for, and am I capable of being objective in trying to find it?

Infertility, as we know, is an exceptionally frustrating, emotionally devastating time. Most people would not be able to remove themselves from the situation long enough to objectively evaluate the qualities of a potential surrogate. That is why most surrogate agencies offer extensive psychological screening of their surrogates. Not only is there a qualified specialist who can make a recommendation whether the woman is suitable, but if you are working with an agency that has had significant experience with surrogates, the agency's personnel also may be able to give you good advice about the woman. Unless the potential surrogate is a friend or relative, you will be relying on your own judgment, an evaluation which, almost by definition, is clouded by your extreme desire to have a child. An agency does, or should, conduct significant background checks on its surrogates. Will you? An agency interviews references? Will you? SMI and most other agencies have a variety of checks and balances in place to do its utmost to ensure that its surrogates are mature, intelligent, responsible woman. Can you do the same?

How will I manage the relationship with my surrogate? The nature and extent of interaction with your surrogate varies considerably. Some of our surrogates wish to be very involved with their couples, others do not. One of the most important functions we perform is trying to ensure that couples and surrogates "fit." If you find your own surrogate each of you may have very different expectations about how involved you will be. Will you be going with her to pre-natal visits? Will she be calling you every week? Will she meet your family, or you hers? These and many other relationship issues can be appropriately addressed by an agency that has had experience in addressing such issues.

How well do I handle stress and confrontation? This is an extremely important area to evaluate. While SMI and a few other programs have never had a woman change her mind about relinquishing a child, surrogacy arrangements still have conflicts. Without a neutral third party, you will have to resolve any difficulties on your own. Can you? Perhaps a different way of thinking about this issue involves your own relationship. For anyone who has ever been through marital counseling, they can attest to the good it has done. Being able to have an objective listener, being able to voice your concerns, being able to "vent," without the fear of being judged is immensely valuable. On countless occasions, I have been able to listen to a couple's concerns, offer suggestions, talk to surrogates, and resolve potentially damaging situations which, without an intermediary, may have turned into disasters. How will you handle it when your surrogate gets upset with you or you with her? What about the practical aspects of surrogacy?

Will you have a contract? What should it say? I am frequently asked to "sell" my contracts. I do not. They are invaluable to me because they are almost living documents. I have revised them hundreds of times, based on hundreds of couples' and surrogates' suggestions and innumerable hours of research. A doctor does not write a prescription without first seeing a patient. And, even if you do locate a "form contract" how will you know whether it adequately protects your interests? What happens if your surrogate wants to abort? Or refuses? What about her fee? Discussions about money are often embarrassing. What would you do, for example, if your surrogate asked for all of her fee before she delivered? Wouldn't you feel as if you had no choice? After all, if you say no, you run the risk of alienating her. If you agree, you appear easy to manipulate. Sure, you can fill in the blanks to any document. But, think of this situation this way: would you invest in the stock market without talking to a broker? Why invest in the most important decision of your life, the future of your child, indeed the very existence of your child, without talking to an expert? If your reasons for avoiding an agency are financial, sit down and calculate what you expect to pay. Then, call an agency and see what they charge. While agency fees will be more, you may be surprised that the difference is not that significant. At some point you will have to have a lawyer anyway. Many agency fees, like SMI's, include attorneys fees. I have never worked with a couple who found their own surrogate who did not incur several thousand dollars of unanticipated costs. An agency will detail exactly what those expenses will be.

These are but a few considerations, then, in deciding whether to work through an agency or pursue surrogacy on your own. What I see as a particularly disturbing trend is the possibility of posting your name on the internet, and attempting to judge the quality of people who offer to be surrogates for you. At SMI, we reject 98% of the woman who first express an interest in surrogacy. I cannot tell you how many times people have contacted us about a woman they "found" only to learn that she was not at all what she appeared. An agency, at least, has criteria for assessing surrogates. The web or a classified ad has none.

Perhaps the greatest danger of working independently is that you remove the very people who can, and should, provide the type of guidance you need. Consider this: the surrogate agency that has had the most failures, far more than any other program, is the one that did not screen their surrogates or their couples, or did only minimal testing. Doesn't that speak volumes about the need for objectivity? Surrogacy's failures result from the absence of objectivity. The only thing more tragic than working with an agency that isn't responsible is not working with one at all. Of course there have been many independent arrangements which have resulted in beautiful babies, satisfied surrogates, and thrilled couples. You may be just such a person. You may get lucky and find a perfect surrogate, of you may have found a wonderful couple. But is it worth the risk if you don't?

Editor's Note: Steven C. Litz is the Director of Surrogate Mothers, Inc., P.O. Box 216, Monrovia, IN 46157.